Coulter v. Layton — 1 Del. 494

Majority

p. 494

WILLIAM V. COULTER vs. JOSHUA LAYTON.

Headnote

A justice of the peace must try the cause on the allegation and proofs of the plff. before giving judgment by default.

The summons should specify the place of meeting with certainty.

“At Milton, before Peter Had,” is not sufficiently certain.

Certiorari to Justice Ponder.

The exceptions were: First. That no regular or legal warrant was issued in the cause. Second. That no place of return is mentioned in said warrant. Third. That judgment was rendered by the justice by default against the said Joshua Layton without first having heard the allegations and proofs of the plff the said William V. Coulter, as by the act of assembly he ought to have done. Fourth. For that the execution was not lawful.

The summons was—“to appear, on Saturday, the nineteenth day of this instant, at Milton, before Peter Hall, one of our justices,” &c. And the docket entry of judgment was as follows: “Judgment, entered in favor of plff. the 26th July, 1834, for the above debt and cost, by default; constable sworn.”

The judgment was reversed on the second and third exceptions. The place of return is not sufficiently certain. “At Milton, before

p. 495

Peter Hall,” is anywhere in the town, wherever the justice may be. The summons should specify the place; as, for instance, “before Peter Hall, esquire, at his office, in Milton.” Such was the uniforrii decision of the late supreme court. The fifth section of the act of assembly requires that if the deft, shall fail to appear “the justice may adjourn the cause to a further day, or he may hear the allegations and proofs of the plff. in the absence of the deft, and give judgment against such deft, by default,” the return being first verified by oath,” &c. From this it appears that it is necessary for the justice to try the cause, to examine the proofs and allegations of the plff. to be satisfied that there is a just ground for his judgment. And as it is his duty thus to try the cause, his record should show that he did do it, either by stating the fact, or by setting forth the cause of action and so much of the proof as will show that the cause was investigated and decided on sufficient grounds,^[1] Colesberry vs. Stoops, ante 448.

Judgment reversed.

(a) (a) The following form of entering a judgment by default would meet the requirements of the act of assembly: “And now, to wit, this-day of-, A. D. 18—, the said --. -, the defendant having failed to appear, after hearing the allegations and proofs of the said--, the plaintiff, judgment is hereby given against the said defendant by default, in favor of the said plaintiff, for the sum of-debt, and — costs; the return of the summons being first verified as by law required. Judgment, debt, § Costs,